Policing the FBI

03/15/2011 12:32 pm ET
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Updated
May 25, 2011

Emily Berman
Counsel in the Liberty and National Security Program, Brennan Center for Justice

Hundreds of violations of laws, executive orders, and other regulations. A two-and-a-half year delay between when a violation was committed and when it was reported. Failure of private entities, such as phone companies and internet service providers, to insist on valid legal justification before turning over customer records. Incorporation of improperly acquired information into government databases.

These are just some of the findings of an Electronic Frontier Foundation study of nearly 2,500 pages of FBI documents from 2001 to 2008. The documents report violations of the rules governing FBI investigations to the Intelligence Oversight Board -- a commission charged with overseeing the Intelligence Community's compliance with the Constitution and other applicable laws.

If the report's findings sound familiar, that's because it is just the latest in a series of reports documenting the many ways in which the FBI, particularly when engaged in conducting intelligence investigations, works outside the bounds of its authority. Taken together, these reports send an unmistakable message: the existing safeguards to ensure that the FBI complies with all of the applicable laws, rules, and regulations simply are not up to the task.

Not only is the story familiar, it is also entirely predictable. For years the Bureau has struggled to abide by its own rules. The response? Change the rules. Since 1976, when the Justice Department first adopted guidelines to regulate the FBI's investigative powers, those guidelines have become more and more lax in four distinct ways. The FBI's domestic-intelligence-collection and analysis role has expanded, the standards required to engage in investigative activity have been relaxed, limits on the intrusiveness of investigative techniques have been curtailed, and oversight and supervisory approval requirements have been rolled back.

The result is a domestic intelligence agency collecting information about U.S. citizens with only minimal restrictions on its behavior and with insufficient oversight. In such a situation, it is no wonder that FBI agents -- acting with the best of intentions -- often stray beyond the limits of their powers.

This must change. It is time for the Bureau to recognize its own tendency for excessive zeal in intelligence collecting and to undertake a serious effort to reform its practices. It is time for the Justice Department to hold the Bureau to a higher standard. It is time for Congress to take a more active role in policing the boundaries of FBI power, and in ensuring that violations of existing rules have consequences.

And determining whether the rules are being followed should be only part of the inquiry. The rules themselves must be examined to ascertain whether they make the FBI more effective or whether their costs outweigh their benefits. The FBI, the Justice Department, and Congress should be asking: How frequently are particular authorities used? How frequently has their use led to meaningful intelligence? Are there any authorities that would be more effective if they were used more (or less) frequently?

To be sure, intelligence collection is an important part of the FBI's mission, and it is particularly crucial to terrorism prevention efforts. But strengthened oversight would actually aid in effective counterterrorism efforts, in at least two ways. First, it would indicate which methods work and which ones don't, allowing the FBI to make better decisions about when and how to use its authorities. Second, subjecting itself to increased oversight -- and the accountability that comes with it -- will help the FBI shed the stigma of abuse. This will allow it to repair its strained relationships with the communities it polices, creating a more cooperative (and more fruitful) investigative environment.

We need to take our counterterrorism efforts seriously. This means not only training, equipping, and deploying law enforcement officers. It also means employing meaningful evaluation mechanisms to prevent abuses and to determine which of the FBI's existing authorities are effective, which ones are unnecessary, and which ones lead to an unacceptable number of civil liberties violations.